Juries severity, it is true, often prevented its execution. stood ready to violate their oaths rather than send a man to the gallows for some trivial offense; and to construe the strength out of many a Draconian statute was often, in the language of the paper to which we listened with so much pleasure this morning, "the resplendent work of a humane judiciary." But wherever the interests of the party in power were involved in a criminal proceeding, the bench had proved but a feeble barrier against political passions and prejudices. Under the guise of prosecuting crime, ministers had not seldom been seen to strike down the innocent and spare the guilty. What might be the future of the new governments which, a hundred years ago, were being here called into life, to succeed to the rights forfeited by the British Crown, who could tell? They were to be clad with the same sovereign power. They might abuse it in the same way. For this cause we find these solemn guaranties in our American constitutions, of the right of all accused of crime to have fair notice of the charge, defense by counsel, trial by jury, and exemption from being forced to testify against themselves. That of defense by counsel is more nearly connected than one might think with that of immunity from enforced confession. In Finch's Discourse on Law, he speaks approvingly of the then English rule of refusing counsel when the prisoner denied the fact, and gives this as his reason: "For either his conscience, perhaps, will sting him to utter the truth, or otherwise, by his gesture, countenance, or simplicity of speech, it may bee discovered; which the artificial speech of his Counsel learned, would hide and colour. Also himself can best answer to the fact."* *Edition of 1661, p. 386. The power of a law, I need not say to an audience like this, cannot be known or foretold when it is enacted. It will lie in the construction and operation to be given it by the courts and people. If it appeals to some popular prejudice; if it is rooted in some traditional principle of freedom, for which a former generation may have fought with their kings, and fought successfully; if it attracts human sympathy, or reassures human fears, it may rear up around itself a wall of protection and public reverence, which will endure long after the reason of the enactment has ceased to exist. A law may grow into an institution. It may be extended by analogy, it may be expounded and expanded by some course of judicial decision, far beyond the anticipations of its framers. So did the little phrase, "impair the obligation of contracts"-like the genius of some Arabian tale-at the touch of the magic wand of Chief Justice Marshall, rise and spread into the form of that invincible champion of chartered franchises, by which the whole theory of American corporations was to be revolutionized once and again. And so, by means perhaps less direct, but no less controlling, has a new meaning been read into many a provis ion of statute or constitution, by public opinion and the lapse of time-a meaning by which the law, it may be, at last ceases to protect, and begins to oppress society. Has not this been the history of the constitutional guaranty now under consideration? The judges of England gave it as their opinion, in 1628, under the spur of the public sentiment that was then dictating the Petition of Right, that to compel a discovery by torture, from one accused of crime, was not allowable by the laws of the realm. All precedent, however, was against them. The practice of the reigning sovereign continued to be against them as long as he had courts to control. The authorities which they could cite to sustain their opinion were uncertain. Britton, in the passage already quoted, was the strongest of all. Fortescue* had inveighed, with a manly outburst of feeling, against the barbarity and folly of the practice, but had not ventured to deny its legality. Jardine, in our own day, has not hesitated to defend it as an ancient flower of the prerogative. The maxim, Nemo tenetur accusare seipsum, first appears in English law bookst at the era of the Civil War, and certainly derives no authority from the language in which it is expressed. As Ortolan said of the theories of Roman law and legend evolved by the German historical school, it has the singular merit of having been wholly unknown to the Romans themselves. Hardly two authors quote it in the same words, and in one leading case, People vs. McMahon, 15 N. Y. 387, 390, it' is cited twice in the same opinion-once as Nemo tenetur accusare seipsum, and once as Nemo tenetur prodere seipsum. Here, then, was a disputable doctrine of uncertain origin— a doctrine that great men could assert in books, and deny in practice. It was a doctrine in advance of the utterance of the judges in Felton's case. They only forbade torture. This went further, and forbade any form of compulsion. In the Countess of Shrewsbury's case, already cited, while her rank and sex might save her from the rack, Coke and Bacon concurred in holding that a fine of £20,000 and imprisonment during the king's pleasure were but a just punishment for her refusal to criminate herself; and the poor lady, in fact, died in the Tower. Our forefathers, then, approving to its full extent the principle formulated in Wingate's maxim, determined to give it a place in their constitutions. They did so. But did they mean to do more, and in effect impede, if not prevent, dis * Cap. xxii, folio 24. + Wingate's Maxims, 1648. closures of crime, not procured by force or threatened fine or imprisonment? For this is the result to which a hundred years of use has really brought us. In few of our states* is the prisoner, on his arrest, even asked by the examining or committing magistrate if he desires to make a statement; and in almost every one of these the magistrate is enjoined to caution him that he need say nothing, and that whatever he does say may be used against him. Similar provisions were introduced into the English law by Sir John Jervis's Act in 1848. Is it not plain that such an invitation to speak is rather a counsel to keep silent? The object of criminal prosecutions is to detect the authors of crime, and to punish them. In the majority of cases the person arrested is the person guilty. In most countries the first step is to ask him to give an account of himself with reference to the crime in question-to say where he was and what he was doing at the time of its commission; to explain, if he can, the circumstances which fasten suspicion upon him. In most countries this inquiry is conducted by a magistrate or prosecuting officer, and instituted before the prisoner has consulted counsel, or had time to frame theories of defense. The result of the examination is put in writing by the same authority, and therefore preserved in an authentic form. If the accused be innocent, he will often be able to clear himself by a frank statement; if guilty, he will probably become involved in contradictions and absurdities. Such was the practice in England until the act of 1848. Her justices of the peace were originally more like our * Some sort of provision to this effect is made in Delaware, Louisiana, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, Tennessee, and Texas, and in these states only. +11 and 12 Vict. cap. xlii. constables,—prosecuting, rather than judicial officers. From ancient times, and under the positive injunctions of an act of 1554, they had made it a principal part of their duty to examine the prisoner, and record whatever information he gave.+ In the Countess of Shrewsbury's case, we find Lord Bacon pressing her to a disclosure, by this very consideration of ancient and reasonable practice. No subject," he says, in his stately fashion,‡ "was ever brought in causes of estate to trial judicial, but first he passed examination; for examination is the entrance of justice in criminal causes: it is one of the eyes of the king's politic body: there are but two-information and examination: it may not be endured that one of the lights be put out by your example." No prisoner, indeed, can hope to be exempted from an examination, simply because the law makes no provision for requiring it. Some such questioning, under any system of jurisprudence, he is certain to undergo. It may come from neighbors, from busybodies, from reporters, from constables, detectives, jailers. It will come from them if it does not come from authority of law. And the answers obtained, lying simply in human memory, will be easily twisted and perverted by the narrator, anxious, perhaps, to magnify the importance of the revelation his sagacity has secured, or perhaps to screen a friend or serve a grudge. It is, in fact, the evils and inaccuracies of testimony, founded on these extra-judicial confessions, which have led English and American courts to confine its introduction within such narrow bounds. * 2 and 3 P. & M. c. x. † 1 Stevens' Hist. Crim. Law of England, 219, 221. 2 State Trials, 770, 778. |